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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 29, 2016

v No. 327836 Wayne Circuit Court HARVEY DEANDRE MOORE, LC No. 14-007030-01-FC

Defendant-Appellant.

Before: G ADOLA , P.J., and F ORT H OOD and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury trial convictions of se cond-degree murder, MCL 750.317, 1 two counts of assault with int ent to commit murder, MCL 750.83 , felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (“felony-firearm”), MCL 750.227b. He was sentenced, as a third habitual offender, MCL 769.11, to concurrent prison terms of 44 to 70 years for the murder conviction, life imprisonment for each assault with intent to commit murder conviction, and 6 to 10 years for the felon-inpossession conviction, to be served consecutive to a two-year t erm of imprisonment for the felony-firearm conviction. We affirm.

I. FACTUAL BACKGROUND

Defendant’s convictions arise from the July 14, 2015 death of Cortez McCoy (“McCoy”), who was shot while standing near his car. Jermaine Bryant (“Bryant”), who was also near the car, was shot in the shoulder, but he survived. McCoy’s six-mo nth-old daughter was in the backseat of the vehicle at the time of the shooting. The shots shattered the back window of the car, but the child was not struck or injured.

Witnesses testified that defenda nt emerged from the porch of hi s house armed with a long gun, which he fired repeatedly in an apparently random manner, as he walked toward the street. After the shooting, defendant lef t the scene in his vehicle and was involved in an automobile accident a few miles away shortly thereafter.

1 Defendant was originally charg ed with first-degree premeditate d murder, MCL 750.316(1)(a).-2- The defense theory was that defendant acted in self-defense an d in defense of his wife. Defendant claimed that, shortly b efore the shooting, he was ass aulted by Wondell Powell and an unidentified man at an abandoned house near his home. Defendan t testified that Bryant assisted the other two men by holding open the door to the abandoned hou se where the men assaulted defendant. He claimed that he e ventually was able to break awa y from his attacker s and return to his home, where his wife was present. Defendant said that some one then kicked in the side door of the house, so he grabbed a rifle and chased the intruders ou t of the residence, firing several shots. Afterward, defendant claim ed that he ran out of ammunit ion, so he drove away in his SUV. Defendant explained that he then blacked out while he was driving, resulting in the car accident.

The jury rejected defendant’s claims of self-defense and defen se of his wife, convicting him of the aforementioned offenses.

II. EXTRINSIC IMPEACHMENT EVIDENCE

Defendant first argues that he was denied a fair trial when th e prosecutor, while crossexamining him at trial, (1) questioned him regarding whether he was, in fact, legally married, and (2) introduced a jailhouse r ecording of a conversation betw een himself and a female friend known as “Heavy Duty” to show that he was possibly involved in a relationship with Heavy Duty and further undermine the validity of, and his dedication to, his marriage. Defendant also argues that defense counsel was i neffective for failing to obje ct to the prosecutor’s questions and the admission of the jailhouse r ecording. We agree that the ev idence was improperly admitted, but conclude that reversal is not warranted on this basis.

A. STANDARD OF REVIEW

Defendant concedes that the defense did not object to the prose cutor’s questions or to the admission of the jailhouse reco rding, leaving this issue unpres erved. “We review unpreserved evidentiary error, including alleged constitutional error, for plain error.” People v Coy , 258 Mich App 1, 12; 669 NW2d 831 (2003). To demonstrate plain error, a defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the defendant’s] substantial rights,” which “generally requires a s howing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Even if a defendant establishes a pl ain error that affected his substantial rights, “[r]eversal is warranted only when the plai n, forfeited error resulted in the conviction of an actually innocent defendant or when an error s eriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independ ent of the defendant’s innocence.” Id . (quotation marks and citation omitted; second alteration in o riginal).

Because defendant did not move for a new trial or a Ginther 2 hearing in the trial court, our review is limited to mistakes apparent from the record. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009); People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). “A

2 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-3- claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are revi ewed for clear error, and thi s Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo.” Petri , 279 Mich App at 410, citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

In order to prove that defense counsel provided ineffective ass istance, a defendant must demonstrate that (1) “ ‘counsel’s representation fell below an objective standard of reasonableness,’ ” and (2) defendant was prejudiced, i.e. , “ ‘there is a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proc eeding would have b een different.’ ” People v Vaughn , 491 Mich 642, 669-671; 821 NW2d 288 (2012), quoting Strickland v Washington , 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001), quoting Strickland , 446 US at 694. “A defendant must also show that the result that did occur was fun damentally unfair or unreliable.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012).

B. ANALYSIS

At trial, defendant testified that he was acting in self-defen se and in defense of his wife when he fired the gunshots. On cross-examination by the prosec utor, defendant admitted that he did not warn his wife when he thought that someone was trying t o break into the house, and he did not go back inside the house after the shooting to check onhis wife’s safety. The prosecutor then elicited from defendant that he had a close female friend known as “Heavy Duty,” but defendant denied that he was roma ntically involved with her. T he prosecutor also played excerpts of a recorded telephone call between defendant and “He avy Duty,” during which “Heavy Duty” stated that she was tired of people mistaking her for defendant’s wife, and defendant made statements sugge sting that he was not actually m arried.

During his closing argument, the prosecutor refuted defendant’s claim that he acted to protect his wife by pointing out t hat he did not warn her of a possible intruder, and that he did not check on her after the shooting to make sure she was safe. The prosecutor further argued that defendant did not care about his wife and that he would not eve n admit that she was his wife to his friends or “people that he wants to get with.”

Defendant argues on appeal tha t the prosecutor improperly used extrinsic evidence to impeach him on a collateral matter. We agree that the prosecut or’s method of impeachment was improper. MRE 608(b) provide s, in relevant part:

Specific instances of the conduct of a witness, for the purpos e of attacking or supporting the witness’ credibi lity, other than conviction o f crime as provided in Rule 609, may not be proved by extrinsic evidence. They may , however, in the discretion of the court, if proba tive of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, o r (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the wit ness being crossexamined has testified.-4- “As a general rule, . . . a witness may not be contradicted re garding collater al, irrelevant, or immaterial matters.” People v Vasher , 449 Mich 494, 504; 537 NW2d 168 (1995). Likewise, “it has long been the law of this state that a cross-examining attorney must accept the answer given by a witness regardi ng a collateral matter.” LeBlanc , 465 Mich at 590. A collateral matter is “[a]ny matter on which evidenc e could not have been introduc ed for a relevant purpose.” People v Steele , 283 Mich App 472, 488; 769 NW2d 256 (2009) (quotation marks o mitted), quoting Black’s Law Dictionary (8th ed). However, impeachment e vidence is not collateral if it concerns “matters ‘closely beari ng on defendant’s guilt or inno cence,’ ” LeBlanc , 465 Mich at 590 (citation omitted), or “facts directly relevant to the subs tantive issues in the case,” People v Rosen , 136 Mich App 745, 759; 358 NW2d 584 (1984), following People v Guy , 121 Mich App 592, 604-605; 329 NW2d 435 (1982), and McCormick, Evidence (2d ed), § 47, pp 98-99. Additionally, matters that are not considered collateral includ e “facts showing bias, interest, conviction of crime and want of capacity or opportunity for kno wledge,” and “any part of the witness’s account of the background and circumstances of a mate rial transaction which as a matter of human experience he would not have been mistaken abou t if his story were true.” Id

. We agree with defendant that his marital status was a collatera l issue, and that it was improper to admit the recording of defendant’s telephone call w ith “Heavy Duty.” It was the prosecutor who first questioned defendant about whether he love d his wife. The prosecutor could not make that subject a relevant issue in this case merel y by introducing that subject on cross-examination. See MRE 611(c); People v Figgures , 451 Mich 390, 401; 547 NW2d 673 (1996); People v Hernandez , 423 Mich 340, 351-352; 377 NW2d 729 (1985). Cf. People v Jackson , 108 Mich App 346, 349; 310 NW2d 238 (1981) (discussing the pe rmissible scope of cross-examination). It was therefore improper for the prosecut or to use defendant’s response, that he loved his wife, to impeach him with the jail call recor ding.

Moreover, information about defendant’s marital status, i.e. , whether he believed he was married, whether he loved his wife, and whether he was interest ed in an extramarital affair, was not relevant to his self-defense claim—as having a close relati onship with a potential victim is not necessary in order to act in defense of that person—or to any other substantive issue in the case. See MRE 401 (defining “relevant evidence”); MRE 402 (sta ting that, except as otherwise provided, “[a]ll relevant evide nce is admissible”); MCL 780.972 (describing an i ndividual’s right to use deadly force in self-defense or defense of another indiv idual); People v Guajardo , 300 Mich App 26, 34-36; 832 NW2d 409 (2013) (describing lawful self -defense and defense of others under Michigan common law and statutory law); People v Orlewicz , 293 Mich App 96, 102; 809 NW2d 194 (2011) (also discu ssing lawful self-defense). Defendant did not have to demonstrate that he acted in defense of a loved one in order to raise self-defense. See MCL 780.972; Guajardo , 300 Mich App at 34-36; Orlewicz , 293 Mich App at 102. As such, whether defendant cared for or loved his wife, or was legally married t o her, was a collateral issue that had no bearing on defendant’s guilt or innocence. To the exten t that evidence concerning this issue may have reflected on defendant’s credibility, it was sim ilarly improper for the prosecutor to introduce the issue and then u se the extrinsic recording to impeach defendant’s testimony that he loved his wife and was concerned for her safety. See MRE 60 8(b); LeBlanc , 465 Mich at 590; Vasher , 449 Mich at 504.

Accordingly, we conclude that the prosecutor’s use of this ext rinsic evidence to impeach defendant on a collateral matter constituted plain error. See Carines , 460 Mich at 763-764. In-5- addition, given its clear inadmissibility—and the lack of a pla usible purpose or trial strategy for defense counsel’s failure to raise an objection to the evidence —we conclude that it was objectively unreasonable for defense counsel to fail to object to this evidence. See Vaughn , 491 Mich at 669-671. However, we als o conclude that the error did not affect defendant’s substantial rights because it was not outcome determinative, see Carines , 460 Mich at 763, and that defendant was not prejudiced by defense counsel’s failure to ob ject because there is not a reasonable probability that the result of the trial would have been different but for the improper impeachment, see Vaughn , 491 Mich at 669-671.

Although the jury heard evidence indicating that defendant que stioned the validity of his marriage and had a possible romantic interest in “Heavy Duty,” substantial evidence supported the prosecutor’s position that defendant was not acting in defe nse of his wife during the offense. Defendant admitted that he did not warn his wife when he though t someone was attempting to break into his house. In additi on, after running out of ammuni tion, defendant fled from the scene and did not attempt to check on the safety of his wife or warn her of any perceived danger. On the whole, the evidence did not show that defendant did anythin g to protect his wife, beyond firing at the individuals outside of his home. Most significan tly, defendant claimed that he was acting in defense of both his wife and himself , based on the fact that he had been assaulted by the men and subsequently threatened inside his own home. Because d efendant’s claim at trial was that he acted to protect himself, in addition to his wife, his self-defense theory did not depend on whether the jury believed that he had a genuine interest in his wife’s safety.

Therefore, reversal is not warranted based on this evidentiary error, as the improper impeachment evidence was not outcome determinative, and defenda nt was not prejudiced by defense counsel’s failure to object.

III. SUPPLEMENTAL JURY INSTRUCTIONS

Defendant next argues that the t rial court erred when it gave a supplemental jury instruction on the assault element of the assault with intent t o commit murder and assault with intent to do great bodily harm less than murder charges, but di d not reinstruct the jury on the necessary intent for the charged offenses, i.e. , an intent to commit murder or an intent to do great bodily harm less than murder. D efendant’s claim has no merit f or two reasons.

First, because defense counsel affirmatively approved the trial court’s supplemental jury instruction, defendant’s substan tive claim of instructional err or has been waived. People v Chapo , 283 Mich App 360, 372-373; 770 NW2d 68 (2009). Therefore, we limit our review to defendant’s alternative claim that defense counsel was ineffect ive for approving the trial court’s supplemental instruction. Because the supplemental instruction was proper, we reject defendant’s ineffective assi stance of counsel claim.

“A defendant is . . . entitled t o have all the elements of the crime submitted to the jury in a charge which [is] neither erroneous nor misleading . . . .” People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011) (quotation marks and citation omitted; alteration and omission in original). However, perfect ins tructions are not necessary; a jury instruction is sufficient “if the instruction fairly presented the issues to be tried and adequat ely protected the defendant’s rights.” Id . at 501-502.-6- At the end of the trial, the court instructed the jury on the e lements of assault with intent to commit murder and the lesser offense of assault with intent to do great bodily harm. However, the court stated that the first element of those offen ses was that “defendant tried to physically injure another person.” After the jury began its de liberations, it asked the court to define the assault element of those offenses. The court respon ded by providing a more comprehensive supplemental instruction that defined “assault” i n terms of a simple assault. The court did not provide any additi onal instructions regarding the remaining elements of the charged assault offenses, including the intent required for both offens es, because the jury did not inquire about those elements.

Contrary to defendant’s claim, the trial court’s supplemental instruction did not suggest that it could convict defendant o f assault with intent to commi t murder upon proof of only a simple assault. The jury only requested clarification on the a ssault element, and the court made it clear that it was only providi ng clarification of that speci fic element, which applied to both assault with intent to commit murder and assault with intent to do great bodily harm. The court properly limited its response because the jury’s inquiry was li mited to one element of the offenses. It is clear from the record that the court’s supplem ental instruction was only intended to supplement the assault element discussed in the original ins tructions and did not purport to address the remaining elements of the offenses.

Considering the trial court’s instructions as a whole, the lim ited scope of the jury’s inquiry, and the court’s supplemental explanation, there is no indication that the jury believed that it could convict defendant of assault with intent to commi t murder based on proof of a simple assault. Cf. Kowalski , 489 Mich at 501 (stat ing that jury instru ctions are reviewed “as a whole, rather than piecemeal,” on appeal). Accordingly, defens e counsel was not ineffective for approving the court’s supplemental instruction because the instruction was proper. “Failing to advance a meritless argument or raise a futile objection does n ot constitute ineffective assistance of counsel.” People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

IV. CONCLUSION

Defendant has failed to estab lish that any of his claims on ap peal warrant relief.

Affirmed.

/s/ Michael F. Gadola /s/ Karen M. Fort Hood /s/ Michael J. Riordan